Palm Beach County sues its own consultant for discrimination records


Palm Beach County has taken the extraordinary step of suing its own consultant to get public records that include the names of women and minority business owners who, based on the consultant’s promise of anonymity, described discrimination they faced getting government contracts.

“Unfortunately, to comply with state law, the county had no choice but to seek judicial relief in order to respond to a public records request,” County Attorney Denise Nieman told commissioners in an email Friday.

The county’s lawsuit demands records sought by the Associated General Contractors, a trade group fighting gender- and race-based contract targets that were recommended in the aftermath of disparity studies conducted by the consultant.

AGC asked the consultant, Mason Tillman Associates, for all of the background material it used to compile the studies, including the names of business owners who spoke on the condition of anonymity.

READ the county’s lawsuit against Mason Tillman

Those business owners say revealing their names would leave them open to retaliation. They particularly fear blacklisting by the larger, white-owned firms they must partner with to get a piece of big government contracts.

“You won’t get nothing from them,” said one minority business owner, who insisted on anonymity to protect his business prospects. “They’ll keep doing what they’ve been doing.”

Mason Tillman has argued that its background materials are not subject to the state’s open records law. The firm said it has turned over all of the documents required by law.

“MTA has conducted more than 140 disparity studies over the past 35 years,” the consultant said in an email to The Post. “In every instance, the governmental entity that has engaged MTA to do a study has acknowledged that the anecdotal accounts are not public records and that the identities of the research study participants, including the transcripts of their interviews, are confidential.”

The dispute over the documents is only the most recent flash point in a debate that has cleaved the county along racial lines. It will have a major impact over whether and how future disparity studies are conducted not just in Palm Beach County but in the state, which has some of the most expansive open records laws in the country.

Mason Tillman’s studies — and the race- and gender-specific contract targets they could justify — could play a role in who gets some of the $1.15 billion in garbage hauling, construction and road repair contracts the county and its Solid Waste Authority will award over the next several years.

The construction trade group questioned the legitimacy of Mason Tillman’s studies, which found that women and minorities got fewer and less lucrative contracts than their presence in the marketplace suggested they should have received.

“Neither the AGC, nor its members have any interest or desire to retaliate against the parties who offered anecdotal evidence,” said Michelle Depotter, chief executive officer of the group’s Florida chapter. “AGC is only seeking to have transparency in this process.”

In seeking to fulfill AGC’s records request, which minority business owners contend is a part of a strategy to block race- and gender-based contract targets, the county now finds itself suing a consultant it has paid $1.1 million over four years.

The county’s complaint, filed in Palm Beach County Circuit Court on Friday, lays out several instances in July and earlier this month when county officials asked Mason Tillman for documents that would satisfy AGC’s request.

“The county has had several subsequent phone conversations and email communications with MTA to try to obtain public records responsive to AGC’s public records request to no avail,” the complaint states.

Allura Scott, Mason Tillman’s senior manager for equity and compliance, said her California-based firm asked the county for time to find a local lawyer.

“However, the county denied the request and informed Mason Tillman that they would immediately file suit on behalf of AGC’s public records request,” Scott said.

Scott said her firm still hopes to resolve the dispute through discussion rather than a court fight.

“We have asked to be in discussion with the county, and we are still open to that,” she said.

From the county’s perspective, there isn’t much to discuss.

“The documents belong to the county and should be turned over as part of the client file,” said Commissioner Dave Kerner, an attorney who worked on open records laws when he served in the Legislature.

After AGC submitted a 58-point document request to Mason Tillman on July 19, the county told its consultant it wanted the same information.

When Mason Tillman told AGC it would cost $4,800 for some of the documents, the county paid half the bill, documents show.

Mason Tillman agreed to accept that as payment in full. County officials would not say why they paid their consultant to satisfy AGC’s records request.

The county says Mason Tillman’s research belongs to the county and the consultant is compelled to provide it upon request no matter the consequences.

‘We spoke freely’

Women and minority business owners interviewed by The Post said they are dismayed that the county is partnering with AGC’s Florida East Coast Chapter. Fearful and angry, they say they are considering legal action to guard their anonymity and future business prospects.

“Obviously, it’s highly upsetting that what we shared with them in confidence would be made public,” said a minority business owner who, like others interviewed by The Post, asked for anonymity because he fears retaliation. “We were assured that our testimony would be held in confidence. Because of that, we spoke freely.”

Mason Tillman was paid $750,000 to conduct a countywide disparity study and $361,000 for a study of Solid Waste Authority contracting.

Commissioners, sitting as the SWA board, voted to accept Mason Tillman’s findings and to establish a 10 percent race- and gender-specific target for the $450 million in garbage-hauling contracts expected to be awarded next year.

Commissioners also have voted to accept Mason Tillman’s findings of disparities in county contracting, but they have not yet embraced race- and gender-specific contract targets. With $700 million-plus in road, building and bridge construction being undertaken with money from an increased sales tax, commissioners are expected to discuss county targets this fall.

Supporters of those targets worry commissioners will use the dispute over the documents to scrap the Solid Waste Authority targets and to make sure they are not established countywide.

“They have all the information to take the easy yes,” Brian Johnson, president of the Minority Builders Coalition, said of the looming commission debate. “They want to bow down to the AGC and find a hard no.”

Richard Ryles, a West Palm Beach attorney, will speak for minority business owners Tuesday when commissioners discuss their push for more documents from Mason Tillman.

“It’s really ironic that the county would be in a battle with its own consultant rather than supporting that consultant,” Ryles said. “They didn’t want to accept the findings from the outset. This is just another attempt to stop the process. They’re carrying water for the AGC. Stevie Wonder could see what they’re doing.”

Records law exemption?

Both of Mason Tillman’s studies contained a statistical analysis and anecdotes from unidentified business owners.

The consultant insists that it has turned over what it is required to turn over, which is most of what AGC requested, except for the anonymous interviews.

Florida’s open records law requires government agencies to maintain their documents and, upon request, make them available. The law covers not just government agencies but also any “private agency, person, partnership, corporation, or business entity acting on behalf of any public agency.”

“A contractor who fails to provide the public records to the public agency within a reasonable time may be subject to penalties,” the law states.

Mason Tillman isn’t arguing that it isn’t an agency of the government under the open records law. Instead, it is arguing that the method it used in preparing its studies is not subject to the law.

David Ottey, a chief assistant county attorney, said Mason Tillman has not asserted a specific exemption to the state’s open records law.

“I told them the public records law is pretty clear,” he said. “If there is an exemption, you have to say what it is.”

Generally, anonymity honored

Franklin Lee, a regulatory compliance attorney from Maryland hired by the county to review Mason Tillman’s work, said what’s unfolding in Palm Beach County is rare.

“The general practice — and I’ve been involved in many of these (studies) — has been local governments don’t request that anecdotal information,” said Lee, whose reviews of Mason Tillman’s studies determined they met industry standards.

Lee said being able to offer study participants anonymity is critical to getting at the root of discrimination.

“You do it so they’ll be forthright and truthful,” he said, adding that, without the promise of anonymity, business owners will be reluctant to tell study authors what they experience.

Samuel Myers Jr., an economist with the University of Minnesota who has written extensively on disparity studies, said firms conducting them often obtain sworn statements from those providing anecdotes about discrimination.

“It is not standard to reveal the identities of the respondents in the final report, but it is standard to maintain the tapes or transcripts of the sworn testimony,” Myers said. “Mason Tillman know this and should be compelled to turn over their transcripts or tapes to any challenging party.”

Kerner said it is not the county’s push for documents that has put at risk the anonymity Mason Tillman promised study participants. It’s the state’s open records laws, he said, which don’t allow the consultant to withhold documents it produced under contract with the county.

“Mason Tillman didn’t fully research our state laws on public records,” he said. “They made promises they can’t keep.”

At least two other commissioners, Hal Valeche and Steven Abrams, have publicly supported providing the documents.

Another of Kerner’s colleagues, Mack Bernard, has pushed for the disparity studies and for race- and gender-based contract targets. He has added his voice to those questioning the push to have Mason Tillman provide additional documents.

“I’m not sure if this is a scare tactic to punish those who spoke to the consultant,” said Bernard, the commission’s only black member.

For its part, AGC said it is not looking to set women and minority business owners up for retaliation.

“AGC gives no credence to these concerns,” Depotter said. “However, it is unfortunate that Mason Tillman appears to have represented that certain protections would be afforded to their interviewees that are not allowed under the Florida Public Records Act or under any sort of litigation privilege to my knowledge.”



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